SUPREME COURT OF THE UNITED STATES
_________________
No. 16–402
_________________
TIMOTHY IVORY CARPENTER, PETITIONER
v.
UNITED STATES
on writ of certiorari to the united states
court of appeals for the sixth circuit
[June 22, 2018]
Justice Alito, with whom Justice Thomas joins,
dissenting.
I share the Court’s concern about the effect of
new technology on personal privacy, but I fear that today’s
decision will do far more harm than good. The Court’s reasoning
fractures two fundamental pillars of Fourth Amendment law, and in
doing so, it guarantees a blizzard of litigation while threatening
many legitimate and valuable investigative practices upon which law
enforcement has rightfully come to rely.
First, the Court ignores the basic distinction
between an actual search (dispatching law enforcement officers to
enter private premises and root through private papers and effects)
and an order merely requiring a party to look through its own
records and produce specified documents. The former, which intrudes
on personal privacy far more deeply, requires probable cause; the
latter does not. Treating an order to produce like an actual
search, as today’s decision does, is revolutionary. It violates
both the original understanding of the Fourth Amendment and more
than a century of Supreme Court precedent. Unless it is somehow
restricted to the particular situation in the present case, the
Court’s move will cause upheaval. Must every grand jury subpoena
duces tecum be supported by probable cause? If so,
investigations of terrorism, political corruption, white-collar
crime, and many other offenses will be stymied. And what about
subpoenas and other document-production orders issued by
administrative agencies? See,
e.g., 15 U. S. C.
§57b–1(c) (Federal Trade Commission); §§77s(c), 78u(a)–(b)
(Securities and Exchange Commission); 29 U. S. C. §657(b)
(Occupational Safety and Health Administration); 29 CFR
§1601.16(a)(2) (2017) (Equal Employment Opportunity
Commission).
Second, the Court allows a defendant to object
to the search of a third party’s property. This also is
revolutionary. The Fourth Amendment protects “[t]he right of the
people to be secure in
their persons, houses, papers, and
effects” (emphasis added), not the persons, houses, papers, and
effects of others. Until today, we have been careful to heed this
fundamental feature of the Amendment’s text. This was true when the
Fourth Amendment was tied to property law, and it remained true
after
Katz v.
United States, 389 U. S. 347
(1967), broadened the Amendment’s reach.
By departing dramatically from these fundamental
principles, the Court destabilizes long-established Fourth
Amendment doctrine. We will be making repairs—or picking up the
pieces—for a long time to come.
I
Today the majority holds that a court order
requiring the production of cell-site records may be issued only
after the Government demonstrates probable cause. See
ante,
at 18. That is a serious and consequential mistake. The Court’s
holding is based on the premise that the order issued in this case
was an actual “search” within the meaning of the Fourth Amendment,
but that premise is inconsistent with the original meaning of the
Fourth Amendment and with more than a century of precedent.
A
The order in this case was the functional
equivalent of a subpoena for documents, and there is no evidence
that these writs were regarded as “searches” at the time of the
founding. Subpoenas
duces tecum and other forms of
compulsory document production were well known to the founding
generation. Blackstone dated the first writ of subpoena to the
reign of King Richard II in the late 14th century, and by the end
of the 15th century, the use of such writs had “become the daily
practice of the [Chancery] court.” 3 W. Blackstone, Commentaries on
the Laws of England 53 (G. Tucker ed. 1803) (Blackstone). Over the
next 200 years, subpoenas would grow in prominence and power in
tandem with the Court of Chancery, and by the end of Charles II’s
reign in 1685, two important innovations had occurred.
First, the Court of Chancery developed a new
species of subpoena. Until this point, subpoenas had been used
largely to compel attendance and oral testimony from witnesses;
these subpoenas correspond to today’s subpoenas
ad
testificandum. But the Court of Chancery also improvised a new
version of the writ that tacked onto a regular subpoena an order
compelling the witness to bring certain items with him. By issuing
these so-called subpoenas
duces tecum, the Court of Chancery
could compel the production of papers, books, and other forms of
physical evidence, whether from the parties to the case or from
third parties. Such subpoenas were sufficiently commonplace by 1623
that a leading treatise on the practice of law could refer in
passing to the fee for a “
Sub pœna of
Ducas tecum”
(seven shillings and two pence) without needing to elaborate
further. T. Powell, The Attourneys Academy 79 (1623). Subpoenas
duces tecum would swell in use over the next century as the
rules for their application became ever more developed and
definite. See,
e.g., 1 G. Jacob, The Compleat
Chancery-Practiser 290 (1730) (“The
Subpoena duces tecum is
awarded when the Defendant has confessed by his Answer that he hath
such Writings in his Hands as are prayed by the Bill to be
discovered or brought into Court”).
Second, although this new species of subpoena
had its origins in the Court of Chancery, it soon made an
appearance in the work of the common-law courts as well. One court
later reported that “[t]he Courts of Common law . . .
employed the same or similar means . . . from the time of
Charles the Second at least.”
Amey v.
Long, 9 East.
473, 484, 103 Eng. Rep. 653, 658 (K. B. 1808).
By the time Blackstone published his
Commentaries on the Laws of England in the 1760’s, the use of
subpoenas
duces tecum had bled over substantially from the
courts of equity to the common-law courts. Admittedly, the
transition was still incomplete: In the context of jury trials, for
example, Blackstone complained about “the want of a compulsive
power for the production of books and papers belonging to the
parties.” Blackstone 381; see also,
e.g.,
Entick v.
Carrington, 19 State Trials 1029, 1073 (K. B. 1765) (“I
wish some cases had been shewn, where the law forceth evidence out
of the owner’s custody by process. [But] where the adversary has by
force or fraud got possession of your own proper evidence, there is
no way to get it back but by action”). But Blackstone found some
comfort in the fact that at least those documents “[i]n the hands
of third persons . . . can generally be obtained by rule
of court, or by adding a clause of requisition to the writ of
subpoena, which is then called a
subpoena duces
tecum.” Blackstone 381; see also,
e.g.,
Leeds v.
Cook, 4 Esp. 256, 257, 170 Eng. Rep. 711 (N. P. 1803)
(third-party subpoena
duces tecum);
Rex v.
Babb, 3 T. R. 579, 580, 100 Eng. Rep. 743, 744
(K. B. 1790) (third-party document production). One of the
primary questions outstanding, then, was whether common-law courts
would remedy the “defect[s]” identified by the Commentaries, and
allow parties to use subpoenas
duces tecum not only with
respect to third parties but also with respect to each other.
Blackstone 381.
That question soon found an affirmative answer
on both sides of the Atlantic. In the United States, the First
Congress established the federal court system in the Judiciary Act
of 1789. As part of that Act, Congress authorized “all the said
courts of the United States . . . in the trial of actions
at law, on motion and due notice thereof being given, to require
the parties to produce books or writings in their possession or
power, which contain evidence pertinent to the issue, in cases and
under circumstances where they might be compelled to produce the
same by the ordinary rules of proceeding in chancery.” §15, 1Stat.
82. From that point forward, federal courts in the United States
could compel the production of documents regardless of whether
those documents were held by parties to the case or by third
parties.
In Great Britain, too, it was soon definitively
established that common-law courts, like their counterparts in
equity, could subpoena documents held either by parties to the case
or by third parties. After proceeding in fits and starts, the
King’s Bench eventually held in
Amey v.
Long that the
“writ of subpœna duces tecum [is] a writ of compulsory obligation
and effect in the law.” 9 East., at 486, 103 Eng. Rep., at 658.
Writing for a unanimous court, Lord Chief Justice Ellenborough
explained that “[t]he right to resort to means competent to compel
the production of written, as well as oral, testimony seems
essential to the very existence and constitution of a Court of
Common Law.”
Id., at 484, 103 Eng. Rep., at 658. Without the
power to issue subpoenas
duces tecum, the Lord Chief Justice
observed, common-law courts “could not possibly proceed with due
effect.”
Ibid.
The prevalence of subpoenas
duces tecum
at the time of the founding was not limited to the civil context.
In criminal cases, courts and prosecutors were also using the writ
to compel the production of necessary documents. In
Rex v.
Dixon, 3 Burr. 1687, 97 Eng. Rep. 1047 (K. B. 1765), for
example, the King’s Bench considered the propriety of a subpoena
duces tecum served on an attorney named Samuel Dixon. Dixon
had been called “to give evidence before the grand jury of the
county of Northampton” and specifically “to produce three vouchers
. . . in order to found a prosecution by way of
indictment against [his client] Peach . . . for forgery.”
Id., at 1687, 97 Eng. Rep., at 1047–1048. Although the court
ultimately held that Dixon had not needed to produce the vouchers
on account of attorney-client privilege, none of the justices
expressed the slightest doubt about the general propriety of
subpoenas
duces tecum in the criminal context. See
id., at 1688, 97 Eng. Rep., at 1048. As Lord Chief Justice
Ellenborough later explained, “[i]n that case no objection was
taken to the writ, but to the special circumstances under which the
party possessed the papers; so that the Court may be considered as
recognizing the general obligation to obey writs of that
description in other cases.”
Amey,
supra, at 485, 103
Eng. Rep., at 658; see also 4 J. Chitty, Practical Treatise on the
Criminal Law 185 (1816) (template for criminal subpoena
duces
tecum).
As
Dixon shows, subpoenas
duces
tecum were routine in part because of their close association
with grand juries. Early American colonists imported the grand
jury, like so many other common-law traditions, and they quickly
flourished. See
United States v.
Calandra, 414
U. S. 338, 342–343 (1974). Grand juries were empaneled by the
federal courts almost as soon as the latter were established, and
both they and their state counterparts actively exercised their
wide-ranging common-law authority. See R. Younger, The People’s
Panel 47–55 (1963). Indeed, “the Founders thought the grand jury so
essential . . . that they provided in the Fifth Amendment
that federal prosecution for serious crimes can only be instituted
by ‘a presentment or indictment of a Grand Jury.’ ”
Calandra,
supra, at 343.
Given the popularity and prevalence of grand
juries at the time, the Founders must have been intimately familiar
with the tools they used—including compulsory process—to accomplish
their work. As a matter of tradition, grand juries were “accorded
wide latitude to inquire into violations of criminal law,”
including the power to “compel the production of evidence or the
testimony of witnesses as [they] conside[r] appropriate.”
Ibid. Long before national independence was achieved, grand
juries were already using their broad inquisitorial powers not only
to present and indict criminal suspects but also to inspect public
buildings, to levy taxes, to supervise the administration of the
laws, to advance municipal reforms such as street repair and bridge
maintenance, and in some cases even to propose legislation.
Younger,
supra, at 5–26. Of course, such work depended
entirely on grand juries’ ability to access any relevant
documents.
Grand juries continued to exercise these broad
inquisitorial powers up through the time of the founding. See
Blair v.
United States, 250 U. S. 273, 280
(1919) (“At the foundation of our Federal Government the
inquisitorial function of the grand jury and the compulsion of
witnesses were recognized as incidents of the judicial power”). In
a series of lectures delivered in the early 1790’s, Justice James
Wilson crowed that grand juries were “the peculiar boast of the
common law” thanks in part to their wide-ranging authority: “All
the operations of government, and of its ministers and officers,
are within the compass of their view and research.” 2 J. Wilson,
The Works of James Wilson 534, 537 (R. McCloskey ed. 1967). That
reflected the broader insight that “[t]he grand jury’s
investigative power must be broad if its public responsibility is
adequately to be discharged.”
Calandra,
supra, at
344.
Compulsory process was also familiar to the
founding generation in part because it reflected “the ancient
proposition of law” that “ ‘ “the public . . .
has a right to every man’s evidence.” ’ ”
United
States v.
Nixon, 418 U. S. 683, 709 (1974); see
also
ante, at 10 (Kennedy, J., dissenting). As early as
1612, “Lord Bacon is reported to have declared that ‘all subjects,
without distinction of degrees, owe to the King tribute and
service, not only of their deed and hand, but of their knowledge
and discovery.’ ”
Blair,
supra, at 279–280. That
duty could be “onerous at times,” yet the Founders considered it
“necessary to the administration of justice according to the forms
and modes established in our system of government.”
Id., at
281; see also
Calandra,
supra, at 345.
B
Talk of kings and common-law writs may seem
out of place in a case about cell-site records and the protections
afforded by the Fourth Amendment in the modern age. But this
history matters, not least because it tells us what was on the
minds of those who ratified the Fourth Amendment and how they
understood its scope. That history makes it abundantly clear that
the Fourth Amendment, as originally understood, did not apply to
the compulsory production of documents at all.
The Fourth Amendment does not regulate all
methods by which the Government obtains documents. Rather, it
prohibits only those “searches and seizures” of “persons, houses,
papers, and effects” that are “unreasonable.” Consistent with that
language, “at least until the latter half of the 20th century” “our
Fourth Amendment jurisprudence was tied to common-law trespass.”
United States v.
Jones, 565 U. S. 400, 405
(2012). So by its terms, the Fourth Amendment does not apply to the
compulsory production of documents, a practice that involves
neither any physical intrusion into private space nor any taking of
property by agents of the state. Even Justice Brandeis—a stalwart
proponent of construing the Fourth Amendment liberally—acknowledged
that “under any ordinary construction of language,” “there is no
‘search’ or ‘seizure’ when a defendant is required to produce a
document in the orderly process of a court’s procedure.”
Olmstead v.
United States, 277 U. S. 438, 476
(1928) (dissenting opinion).[
1]
Nor is there any reason to believe that the
Founders intended the Fourth Amendment to regulate courts’ use of
compulsory process. American colonists rebelled against the Crown’s
physical invasions of their persons and their property, not against
its acquisition of information by any and all means. As Justice
Black once put it, “[t]he Fourth Amendment was aimed directly at
the abhorred practice of breaking in, ransacking and searching
homes and other buildings and seizing people’s personal belongings
without warrants issued by magistrates.”
Katz, 389
U. S., at 367 (dissenting opinion). More recently, we have
acknowledged that “the Fourth Amendment was the founding
generation’s response to the reviled ‘general warrants’ and ‘writs
of assistance’ of the colonial era, which allowed British officers
to rummage through homes in an unrestrained search for evidence of
criminal activity.”
Riley v.
California, 573
U. S. ___, ___ (2014) (slip op., at 27).
General warrants and writs of assistance were
noxious not because they allowed the Government to acquire evidence
in criminal investigations, but because of the
means by
which they permitted the Government to acquire that evidence. Then,
as today, searches could be quite invasive. Searches generally
begin with officers “mak[ing] nonconsensual entries into areas not
open to the public.”
Donovan v.
Lone Steer, Inc., 464
U. S. 408, 414 (1984). Once there, officers are necessarily in
a position to observe private spaces generally shielded from the
public and discernible only with the owner’s consent. Private area
after private area becomes exposed to the officers’ eyes as they
rummage through the owner’s property in their hunt for the object
or objects of the search. If they are searching for documents,
officers may additionally have to rifle through many other
papers—potentially filled with the most intimate details of a
person’s thoughts and life—before they find the specific
information they are seeking. See
Andresen v.
Maryland, 427 U. S. 463, 482, n. 11 (1976). If
anything sufficiently incriminating comes into view, officers seize
it.
Horton v.
California, 496 U. S. 128, 136–137
(1990). Physical destruction always lurks as an underlying
possibility; “officers executing search warrants on occasion must
damage property in order to perform their duty.”
Dalia v.
United States, 441 U. S. 238, 258 (1979); see,
e.g.,
United States v.
Ramirez, 523 U. S.
65, 71–72 (1998) (breaking garage window);
United States v.
Ross, 456 U. S. 798, 817–818 (1982) (ripping open car
upholstery);
Brown v.
Battle Creek Police Dept., 844
F. 3d 556, 572 (CA6 2016) (shooting and killing two pet dogs);
Lawmaster v.
Ward, 125 F. 3d 1341, 1350,
n. 3 (CA10 1997) (breaking locks).
Compliance with a subpoena
duces tecum
requires none of that. A subpoena
duces tecum permits a
subpoenaed individual to conduct the search for the relevant
documents himself, without law enforcement officers entering his
home or rooting through his papers and effects. As a result,
subpoenas avoid the many incidental invasions of privacy that
necessarily accompany any actual search. And it was
those
invasions of privacy—which, although incidental, could often be
extremely intrusive and damaging—that led to the adoption of the
Fourth Amendment.
Neither this Court nor any of the parties have
offered the slightest bit of historical evidence to support the
idea that the Fourth Amendment originally applied to subpoenas
duces tecum and other forms of compulsory process. That is
telling, for as I have explained, these forms of compulsory process
were a feature of criminal (and civil) procedure well known to the
Founders. The Founders would thus have understood that holding the
compulsory production of documents to the same standard as actual
searches and seizures would cripple the work of courts in civil and
criminal cases alike. It would be remarkable to think that, despite
that knowledge, the Founders would have gone ahead and sought to
impose such a requirement. It would be even more incredible to
believe that the Founders would have imposed that requirement
through the inapt vehicle of an amendment directed at different
concerns. But it would blink reality entirely to argue that this
entire process happened without anyone saying
the least thing
about it—not during the drafting of the Bill of Rights, not
during any of the subsequent ratification debates, and not for most
of the century that followed. If the Founders thought the Fourth
Amendment applied to the compulsory production of documents, one
would imagine that there would be
some founding-era evidence
of the Fourth Amendment being applied to the compulsory production
of documents. Cf.
Free Enterprise Fund v.
Public Company
Accounting Oversight Bd., 561 U. S. 477, 505 (2010);
Printz v.
United States, 521 U. S. 898, 905
(1997). Yet none has been brought to our attention.
C
Of course, our jurisprudence has not stood
still since 1791. We now evaluate subpoenas
duces tecum and
other forms of compulsory document production under the Fourth
Amendment, although we employ a reasonableness standard that is
less demanding than the requirements for a warrant. But the road to
that doctrinal destination was anything but smooth, and our initial
missteps—and the subsequent struggle to extricate ourselves from
their consequences—should provide an object lesson for today’s
majority about the dangers of holding compulsory process to the
same standard as actual searches and seizures.
For almost a century after the Fourth Amendment
was enacted, this Court said and did nothing to indicate that it
might regulate the compulsory production of documents. But that
changed temporarily when the Court decided
Boyd v.
United
States, 116 U. S. 616 (1886), the first—and, until today,
the only—case in which this Court has ever held the compulsory
production of documents to the same standard as actual searches and
seizures.
The
Boyd Court held that a court order
compelling a company to produce potentially incriminating business
records violated both the Fourth and the Fifth Amendments. The
Court acknowledged that “certain aggravating incidents of actual
search and seizure, such as forcible entry into a man’s house and
searching amongst his papers, are wanting” when the Government
relies on compulsory process.
Id., at 622. But it
nevertheless asserted that the Fourth Amendment ought to “be
liberally construed,”
id., at 635, and further reasoned that
compulsory process “effects the sole object and purpose of search
and seizure” by “forcing from a party evidence against himself,”
id., at 622. “In this regard,” the Court concluded, “the
Fourth and Fifth Amendments run almost into each other.”
Id., at 630. Having equated compulsory process with actual
searches and seizures and having melded the Fourth Amendment with
the Fifth, the Court then found the order at issue unconstitutional
because it compelled the production of property to which the
Government did not have superior title. See
id., at
622–630.
In a concurrence joined by Chief Justice Waite,
Justice Miller agreed that the order violated the Fifth Amendment,
id., at 639, but he strongly protested the majority’s
invocation of the Fourth Amendment. He explained: “[T]here is no
reason why this court should assume that the action of the court
below, in requiring a party to produce certain papers
. . . , authorizes an unreasonable search or seizure of
the house, papers, or effects of that party. There is in fact no
search and no seizure.”
Ibid. “If the mere service of a
notice to produce a paper . . . is a search,” Justice
Miller concluded, “then a change has taken place in the meaning of
words, which has not come within my reading, and which I think was
unknown at the time the Constitution was made.”
Id., at
641.
Although
Boyd was replete with stirring
rhetoric, its reasoning was confused from start to finish in a way
that ultimately made the decision unworkable. See 3 W. LaFave, J.
Israel, N. King, & O. Kerr, Criminal Procedure §8.7(a) (4th ed.
2015). Over the next 50 years, the Court would gradually roll back
Boyd’s erroneous conflation of compulsory process with
actual searches and seizures.
That effort took its first significant stride in
Hale v.
Henkel, 201 U. S. 43 (1906), where the
Court found it “quite clear” and “conclusive” that “the search and
seizure clause of the Fourth Amendment was not intended to
interfere with the power of courts to compel, through a
subpœna
duces tecum, the production, upon a trial in court, of
documentary evidence.”
Id., at 73. Without that writ, the
Court recognized, “it would be ‘utterly impossible to carry on the
administration of justice.’ ”
Ibid.
Hale, however, did not entirely liberate
subpoenas
duces tecum from Fourth Amendment constraints.
While refusing to treat such subpoenas as the equivalent of actual
searches,
Hale concluded that they must not be unreasonable.
And it held that the subpoena
duces tecum at issue was “far
too sweeping in its terms to be regarded as reasonable.”
Id., at 76. The
Hale Court thus left two critical
questions unanswered: Under the Fourth Amendment, what makes the
compulsory production of documents “reasonable,” and how does that
standard differ from the one that governs actual searches and
seizures?
The Court answered both of those questions
definitively in
Oklahoma Press Publishing Co. v.
Walling, 327 U. S. 186 (1946), where we held that the
Fourth Amendment regulates the compelled production of documents,
but less stringently than it does full-blown searches and seizures.
Oklahoma Press began by admitting that the Court’s opinions
on the subject had “perhaps too often . . . been
generative of heat rather than light,” “mov[ing] with variant
direction” and sometimes having “highly contrasting” “emphasis and
tone.”
Id., at 202. “The primary source of misconception
concerning the Fourth Amendment’s function” in this context, the
Court explained, “lies perhaps in the identification of cases
involving so-called ‘figurative’ or ‘constructive’ search with
cases of actual search and seizure.”
Ibid. But the Court
held that “the basic distinction” between the compulsory production
of documents on the one hand, and actual searches and seizures on
the other, meant that two different standards had to be applied.
Id., at 204.
Having reversed
Boyd’s conflation of the
compelled production of documents with actual searches and
seizures, the Court then set forth the relevant Fourth Amendment
standard for the former. When it comes to “the production of
corporate or other business records,” the Court held that the
Fourth Amendment “at the most guards against abuse only by way of
too much indefiniteness or breadth in the things required to be
‘particularly described,’ if also the inquiry is one the demanding
agency is authorized by law to make and the materials specified are
relevant.”
Oklahoma Press,
supra, at 208. Notably,
the Court held that a showing of probable cause was not necessary
so long as “the investigation is authorized by Congress, is for a
purpose Congress can order, and the documents sought are relevant
to the inquiry.”
Id., at 209.
Since
Oklahoma Press, we have
consistently hewed to that standard. See,
e.g.,
Lone
Steer, Inc., 464 U. S., at 414–415;
United States
v.
Miller, 425 U. S. 435, 445–446 (1976);
California
Bankers Assn. v.
Shultz, 416 U. S. 21, 67 (1974);
United States v.
Dionisio, 410 U. S. 1, 11–12
(1973);
See v.
Seattle, 387 U. S. 541, 544
(1967);
United States v.
Powell, 379 U. S. 48,
57–58 (1964);
McPhaul v.
United States, 364
U. S. 372, 382–383 (1960);
United States v.
Morton
Salt Co., 338 U. S. 632, 652–653 (1950); cf.
McLane
Co. v.
EEOC, 581 U. S. ___, ___ (2017) (slip op.,
at 11). By applying
Oklahoma Press and thereby respecting
“the traditional distinction between a search warrant and a
subpoena,”
Miller,
supra, at 446, this Court has
reinforced “the basic compromise” between “the public interest” in
every man’s evidence and the private interest “of men to be free
from officious meddling.”
Oklahoma Press,
supra, at
213.
D
Today, however, the majority inexplicably
ignores the settled rule of
Oklahoma Press in favor of a
resurrected version of
Boyd. That is mystifying. This should
have been an easy case regardless of whether the Court looked to
the original understanding of the Fourth Amendment or to our modern
doctrine.
As a matter of original understanding, the
Fourth Amendment does not regulate the compelled production of
documents at all. Here the Government received the relevant
cell-site records pursuant to a court order compelling Carpenter’s
cell service provider to turn them over. That process is thus
immune from challenge under the original understanding of the
Fourth Amendment.
As a matter of modern doctrine, this case is
equally straightforward. As Justice Kennedy explains, no search or
seizure of Carpenter or his property occurred in this case.
Ante, at 6–22; see also Part II,
infra. But even if
the majority were right that the Government “searched” Carpenter,
it would at most be a “figurative or constructive search” governed
by the
Oklahoma Press standard, not an “actual search”
controlled by the Fourth Amendment’s warrant requirement.
And there is no doubt that the Government met
the
Oklahoma Press standard here. Under
Oklahoma
Press, a court order must “ ‘be sufficiently limited in
scope, relevant in purpose, and specific in directive so that
compliance will not be unreasonably burdensome.’ ”
Lone
Steer, Inc.,
supra, at 415. Here, the type of order
obtained by the Government almost necessarily satisfies that
standard. The Stored Communications Act allows a court to issue the
relevant type of order “only if the governmental entity offers
specific and articulable facts showing that there are reasonable
grounds to believe that . . . the records . . .
sough[t] are relevant and material to an ongoing criminal
investigation.” 18 U. S. C. §2703(d). And the court “may
quash or modify such order” if the provider objects that the
“records requested are unusually voluminous in nature or compliance
with such order otherwise would cause an undue burden on such
provider.”
Ibid. No such objection was made in this case,
and Carpenter does not suggest that the orders contravened the
Oklahoma Press standard in any other way.
That is what makes the majority’s opinion so
puzzling. It decides that a “search” of Carpenter occurred within
the meaning of the Fourth Amendment, but then it leaps straight to
imposing requirements that—until this point—have governed only
actual searches and seizures. See
ante, at 18–19.
Lost in its race to the finish is any real recognition of the
century’s worth of precedent it jeopardizes. For the majority, this
case is apparently no different from one in which Government agents
raided Carpenter’s home and removed records associated with his
cell phone.
Against centuries of precedent and practice, all
that the Court can muster is the observation that “this Court has
never held that the Government may subpoena third parties for
records in which the suspect has a reasonable expectation of
privacy.”
Ante, at 19. Frankly, I cannot imagine a
concession more damning to the Court’s argument than that. As the
Court well knows, the reason that we have never seen such a case is
because—until today—defendants categorically had no “reasonable
expectation of privacy” and no property interest in records
belonging to third parties. See Part II,
infra. By implying
otherwise, the Court tries the nice trick of seeking shelter under
the cover of precedents that it simultaneously perforates.
Not only that, but even if the Fourth Amendment
permitted someone to object to the subpoena of a third party’s
records, the Court cannot explain why that individual should be
entitled to
greater Fourth Amendment protection than the
party actually being subpoenaed. When parties are subpoenaed to
turn over their records, after all, they will at most receive the
protection afforded by
Oklahoma Press even though they will
own and have a reasonable expectation of privacy in the records at
issue. Under the Court’s decision, however, the Fourth Amendment
will extend greater protections to someone else who is not being
subpoenaed and does not own the records. That outcome makes no
sense, and the Court does not even attempt to defend it.
We have set forth the relevant Fourth Amendment
standard for subpoenaing business records many times over. Out of
those dozens of cases, the majority cannot find even one that so
much as suggests an exception to the
Oklahoma Press standard
for sufficiently personal information. Instead, we have always
“described the constitutional requirements” for compulsory process
as being “ ‘settled’ ” and as applying categorically to
all “ ‘subpoenas [of] corporate books or records.’ ”
Lone Steer, Inc., 464 U. S., at 415 (internal quotation
marks omitted). That standard, we have held, is “
the most”
protection the Fourth Amendment gives “to the production of
corporate records and papers.”
Oklahoma Press, 327
U. S.
, at 208 (emphasis added).[
2]
Although the majority announces its holding in
the context of the Stored Communications Act, nothing stops its
logic from sweeping much further. The Court has offered no
meaningful limiting principle, and none is apparent. Cf. Tr. of
Oral Arg. 31 (Carpenter’s counsel admitting that “a grand jury
subpoena . . . would be held to the same standard as any
other subpoena or subpoena-like request for [cell-site]
records”).
Holding that subpoenas must meet the same
standard as conventional searches will seriously damage, if not
destroy, their utility. Even more so than at the founding, today
the Government regularly uses subpoenas
duces tecum and
other forms of compulsory process to carry out its essential
functions. See,
e.g.,
Dionisio, 410 U. S., at
11–12 (grand jury subpoenas);
McPhaul, 364 U. S., at
382–383 (legislative subpoenas);
Oklahoma Press,
supra, at 208–209 (administrative subpoenas). Grand juries,
for example, have long “compel[led] the production of evidence” in
order to determine “
whether there is probable cause to
believe a crime has been committed.”
Calandra, 414
U. S., at 343 (emphasis added). Almost by definition, then,
grand juries will be unable at first to demonstrate “the probable
cause required for a warrant.”
Ante, at 19 (majority
opinion); see also
Oklahoma Press,
supra, at 213. If
they are required to do so, the effects are as predictable as they
are alarming: Many investigations will sputter out at the start,
and a host of criminals will be able to evade law enforcement’s
reach.
“To ensure that justice is done, it is
imperative to the function of courts that compulsory process be
available for the production of evidence.”
Nixon, 418
U. S., at 709. For over a hundred years, we have understood
that holding subpoenas to the same standard as actual searches and
seizures “would stop much if not all of investigation in the public
interest at the threshold of inquiry.”
Oklahoma Press,
supra, at 213. Today a skeptical majority decides to put
that understanding to the test.
II
Compounding its initial error, the Court also
holds that a defendant has the right under the Fourth Amendment to
object to the search of a third party’s property. This holding
flouts the clear text of the Fourth Amendment, and it cannot be
defended under either a property-based interpretation of that
Amendment or our decisions applying the
reasonable-expectations-of-privacy test adopted in
Katz, 389
U. S. 347. By allowing Carpenter to object to the search of a
third party’s property, the Court threatens to revolutionize a
second and independent line of Fourth Amendment doctrine.
A
It bears repeating that the Fourth Amendment
guarantees “[t]he right of the people to be secure in
their
persons, houses, papers, and effects.” (Emphasis added.) The Fourth
Amendment does not confer rights with respect to the persons,
houses, papers, and effects of others. Its language makes clear
that “ Fourth Amendment rights are personal,”
Rakas v.
Illinois, 439 U. S. 128, 140 (1978), and as a result,
this Court has long insisted that they “may not be asserted
vicariously,”
id., at 133. It follows that a “person who is
aggrieved . . . only through the introduction of damaging
evidence secured by a search of a third person’s premises or
property has not had any of his Fourth Amendment rights infringed.”
Id., at 134.
In this case, as Justice Kennedy cogently
explains, the cell-site records obtained by the Government belong
to Carpenter’s cell service providers, not to Carpenter. See
ante, at 12–13. Carpenter did not create the cell-site
records. Nor did he have possession of them; at all relevant times,
they were kept by the providers. Once Carpenter subscribed to his
provider’s service, he had no right to prevent the company from
creating or keeping the information in its records. Carpenter also
had no right to demand that the providers destroy the records, no
right to prevent the providers from destroying the records, and,
indeed, no right to modify the records in any way whatsoever (or to
prevent the providers from modifying the records). Carpenter, in
short, has no meaningful control over the cell-site records, which
are created, maintained, altered, used, and eventually destroyed by
his cell service providers.
Carpenter responds by pointing to a provision of
the Telecommunications Act that requires a provider to disclose
cell-site records when a customer so requests. See 47
U. S. C. §222(c)(2). But a statutory disclosure
requirement is hardly sufficient to give someone an ownership
interest in the documents that must be copied and disclosed. Many
statutes confer a right to obtain copies of documents without
creating any property right.[
3]
Carpenter’s argument is particularly hard to
swallow because nothing in the Telecommunications Act precludes
cell service providers from charging customers a fee for accessing
cell-site records. See
ante, at 12–13 (Kennedy, J.,
dissenting). It would be very strange if the owner of records were
required to pay in order to inspect his own property.
Nor does the Telecommunications Act give
Carpenter a property right in the cell-site records simply because
they are subject to confidentiality restrictions. See 47
U. S. C. §222(c)(1) (without a customer’s permission, a
cell service provider may generally “use, disclose, or permit
access to individually identifiable [cell-site records]” only with
respect to “its provision” of telecommunications services). Many
federal statutes impose similar restrictions on private entities’
use or dissemination of information in their own records without
conferring a property right on third parties.[
4]
It would be especially strange to hold that the
Telecommunication Act’s confidentiality provision confers a
property right when the Act creates an express exception for any
disclosure of records that is “required by law.” 47
U. S. C. §222(c)(1). So not only does Carpenter lack
“ ‘the most essential and beneficial’ ” of the
“ ‘constituent elements’ ” of property,
Dickman v.
Commissioner, 465 U. S. 330, 336 (1984)—
i.e.,
the right to use the property to the exclusion of others—but he
cannot even exclude the party he would most like to keep out,
namely, the Government.[
5]
For all these reasons, there is no plausible
ground for maintaining that the information at issue here
represents Carpenter’s “papers” or “effects.”[
6]
B
In the days when this Court followed an
exclusively property-based approach to the Fourth Amendment, the
distinction between an individual’s Fourth Amendment rights and
those of a third party was clear cut. We first asked whether the
object of the search—say, a house, papers, or effects—belonged to
the defendant, and, if it did, whether the Government had committed
a “trespass” in acquiring the evidence at issue.
Jones, 565
U. S., at 411, n. 8.
When the Court held in
Katz that
“property rights are not the sole measure of Fourth Amendment
violations,”
Soldal v.
Cook County, 506 U. S.
56, 64 (1992), the sharp boundary between personal and third-party
rights was tested. Under
Katz, a party may invoke the Fourth
Amendment whenever law enforcement officers violate the party’s
“justifiable” or “reasonable” expectation of privacy. See 389
U. S., at 353; see also
id., at 361 (Harlan, J.,
concurring) (applying the Fourth Amendment where “a person [has]
exhibited an actual (subjective) expectation of privacy” and where
that “expectation [is] one that society is prepared to recognize as
‘reasonable’ ”). Thus freed from the limitations imposed by
property law, parties began to argue that they had a reasonable
expectation of privacy in items owned by others. After all, if a
trusted third party took care not to disclose information about the
person in question, that person might well have a reasonable
expectation that the information would not be revealed.
Efforts to claim Fourth Amendment protection
against searches of the papers and effects of others came to a head
in
Miller, 425 U. S. 435, where the defendant sought
the suppression of two banks’ microfilm copies of his checks,
deposit slips, and other records. The defendant did not claim that
he owned these documents, but he nonetheless argued that “analysis
of ownership, property rights and possessory interests in the
determination of Fourth Amendment rights ha[d] been severely
impeached” by
Katz and other recent cases. See Brief for
Respondent in
United States v.
Miller, O. T. 1975,
No. 74–1179, p. 6. Turning to
Katz, he then argued that
he had a reasonable expectation of privacy in the banks’ records
regarding his accounts. Brief for Respondent in No. 74–1179, at 6;
see also
Miller,
supra, at 442–443.
Acceptance of this argument would have flown in
the face of the Fourth Amendment’s text, and the Court rejected
that development. Because Miller gave up “dominion and control” of
the relevant information to his bank,
Rakas, 439 U. S.,
at 149, the Court ruled that he lost any protected Fourth Amendment
interest in that information. See
Miller,
supra, at
442–443. Later, in
Smith v.
Maryland, 442 U. S.
735, 745 (1979), the Court reached a similar conclusion regarding a
telephone company’s records of a customer’s calls. As Justice
Kennedy concludes,
Miller and
Smith are thus best
understood as placing “necessary limits on the ability of
individuals to assert Fourth Amendment interests in property to
which they lack a ‘requisite connection.’ ”
Ante, at
8.
The same is true here, where Carpenter
indisputably lacks any meaningful property-based connection to the
cell-site records owned by his provider. Because the records are
not Carpenter’s in any sense, Carpenter may not seek to use the
Fourth Amendment to exclude them.
By holding otherwise, the Court effectively
allows Carpenter to object to the “search” of a third party’s
property, not recognizing the revolutionary nature of this change.
The Court seems to think that
Miller and
Smith
invented a new “doctrine”—“the third-party doctrine”—and the Court
refuses to “extend” this product of the 1970’s to a new age of
digital communications.
Ante, at 11, 17. But the Court
fundamentally misunderstands the role of
Miller and
Smith. Those decisions did not forge a new doctrine;
instead, they rejected an argument that would have disregarded the
clear text of the Fourth Amendment and a formidable body of
precedent.
In the end, the Court never explains how its
decision can be squared with the fact that the Fourth Amendment
protects only “[t]he right of the people to be secure in
their persons, houses, papers, and effects.” (Emphasis
added.)
* * *
Although the majority professes a desire not
to “ ‘embarrass the future,’ ”
ante, at 18, we can
guess where today’s decision will lead.
One possibility is that the broad principles
that the Court seems to embrace will be applied across the board.
All subpoenas
duces tecum and all other orders compelling
the production of documents will require a demonstration of
probable cause, and individuals will be able to claim a protected
Fourth Amendment interest in any sensitive personal information
about them that is collected and owned by third parties. Those
would be revolutionary developments indeed.
The other possibility is that this Court will
face the embarrassment of explaining in case after case that the
principles on which today’s decision rests are subject to all sorts
of qualifications and limitations that have not yet been
discovered. If we take this latter course, we will inevitably end
up “mak[ing] a crazy quilt of the Fourth Amendment.”
Smith,
supra, at 745.
All of this is unnecessary. In the Stored
Communications Act, Congress addressed the specific problem at
issue in this case. The Act restricts the misuse of cell-site
records by cell service providers, something that the Fourth
Amendment cannot do. The Act also goes beyond current Fourth
Amendment case law in restricting access by law enforcement. It
permits law enforcement officers to acquire cell-site records only
if they meet a heightened standard and obtain a court order. If the
American people now think that the Act is inadequate or needs
updating, they can turn to their elected representatives to adopt
more protective provisions. Because the collection and storage of
cell-site records affects nearly every American, it is unlikely
that the question whether the current law requires strengthening
will escape Congress’s notice.
Legislation is much preferable to the
development of an entirely new body of Fourth Amendment caselaw for
many reasons, including the enormous complexity of the subject, the
need to respond to rapidly changing technology, and the Fourth
Amendment’s limited scope. The Fourth Amendment restricts the
conduct of the Federal Government and the States; it does not apply
to private actors. But today, some of the greatest threats to
individual privacy may come from powerful private companies that
collect and sometimes misuse vast quantities of data about the
lives of ordinary Americans. If today’s decision encourages the
public to think that this Court can protect them from this looming
threat to their privacy, the decision will mislead as well as
disrupt. And if holding a provision of the Stored Communications
Act to be unconstitutional dissuades Congress from further
legislation in this field, the goal of protecting privacy will be
greatly disserved.
The desire to make a statement about privacy in
the digital age does not justify the consequences that today’s
decision is likely to produce.